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The Right Coast
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Out of the Blue: DOJ Asks Court to Hold ABA in Contempt Gail Heriot

By Thomas A. Smith

Loyal readers may recall my post on the ABA from back on March 15th.  There I reproduced a letter that Steve Balch and I had sent to the Department of Education on behalf of the National Association of Scholars opposing the renewal of the ABA’s status as the officially recognized accreditation agency for law schools.  We argued in that letter that the ABA’s proposed standards on diversity were an abuse of the ABA’s authority.  The most astonishing part of the proposed standards was Interpretation 211-1, which stated, “The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school s non-compliance with Standard 211.”

For quite some time now, I’ve know that the Department of Education was taking our objections seriously.  The Department sent a sternly word letter to the ABA postponing consideration of it renewal of authority until December (at which time the ABA House of Delegates will have either fully endorsed the ABA Council on Legal Education’s actions or vetoed them.)  Among other things, the letter suggested that the ABA, in promulgating the new diveristy rules, had not followed the procedures set out in a consent decree that the ABA had entered into with the United States in an antitrust case about a decade ago. Meanwhile, the United States Commission on Civil RIghts recently held a hearing at which the ABA was questioned very closely about its proposed diversity standards (and I’m told the ABA now plans to drop its most objectionable language.) I had been meaning to blog about it, but had not gotten around to it.

Events have overtaken me.  This morning, the Department of Justice issued a press release that it was seeking a court order holding the ABA in contempt for its violations of the consent decree.  It’s hard to tell exactly what this will mean for the ABA at this point, but the folks there are certain not to be pleased.